When Subpoenas Threaten Climate Science

By Ken Kimmell

July 19, 2016

Last week, my organization — the Union of Concerned Scientists — received a subpoena signed by Lamar S. Smith of Texas, the Republican chairman of the House Committee on Science, Space and Technology. The subpoena orders me to hand over correspondence between my staff members and state attorneys general, and between my staff members and environmental organizations and funders. This demand impinges on our group’s constitutional rights, and it would set a terrible precedent affecting many other advocacy groups were we to comply with it.

The subpoena concerns our efforts to inform state attorneys general of our research into Exxon Mobil. Our research details, among other things, how much Exxon Mobil knew about the dangers posed to the planet from carbon emissions from its products at the same time it was spending millions to misinform the public about the science of climate change.

Mr. Smith makes no claim that our organization violated any law or regulation; he simply demands to see our correspondence. This is a deeply troubling request. It is, in effect, a bullying tactic that threatens the work that advocacy groups like mine do under the protection of the First Amendment when we “petition the government for a redress of grievances.” Are we to expect a subpoena every time we have a conversation with a public official if some committee chairman dislikes or disagrees with us?

Mr. Smith’s demand also interferes with continuing law enforcement proceedings by New York and Massachusetts state attorneys general who — acting under their own state laws — have commenced investigations into Exxon Mobil’s potentially fraudulent actions. (Mr. Smith has sent similar subpoenas to the other environmental organizations and funders as well as the offices of the attorneys general of New York and Massachusetts.)

The controversy began last summer, when our organization published a report documenting deception about climate science by Exxon Mobil, other leading fossil fuel companies and industry trade groups. Since that time, two teams of investigative reporters have uncovered further corroborating evidence that for decades, Exxon Mobil’s own scientists warned the company of the dangers of carbon emissions at the same time the company was aggressively promoting a very different message in public and to its investors about climate science. As a result of these revelations, the state attorneys general in New York and Massachusetts commenced their investigations into Exxon Mobil.

Mr. Smith, joined by members of Congress, claims that our organization, the other groups and the state attorneys general have engaged in a conspiracy to deprive Exxon Mobil of its First Amendment right to debate the science of climate change and to chill the work of scientists. This is simply nonsense. Exxon Mobil’s scientists are not being targeted for investigation, and no one is intimidating them to keep them from performing their work. Instead, the investigations center on whether Exxon Mobil misled the public and its own investors when it publicly disparaged, played down or even dismissed outright the growing evidence (from its own scientists and others) that burning fossil fuels causes irrevocable harm to the planet.

Disseminating false information to help sell a product finds no protection in the First Amendment. Imagine if it did: Tobacco companies could get away with saying cigarettes are safe; car companies could deny manufacturing defects that endanger drivers; and pharmaceutical companies could mislead consumers about the efficacy of drugs — all by cloaking themselves in the First Amendment. Fortunately, courts have repeatedly rejected such arguments.

Beyond its lack of a factual or legal basis, Mr. Smith’s subpoena sets a dangerous precedent because it violates our constitutional rights. Mr. Smith’s demand is directed exclusively at the fact that our organization shared information about climate science and Exxon Mobil’s public statements with state attorneys general. But bringing this information to the attention of government officials and urging them to take action is explicitly protected by the First Amendment. The subpoena also infringes on our rights of association, in that it demands that we divulge our private communications with other advocacy groups and funders.

The threat posed by this subpoena is perhaps best demonstrated by its purported legal justification. In a response letter to our organization, Mr. Smith cited the work of the House Un-American Activities Committee in the 1950s as valid legal precedent for the investigation of our organization today. Thus, he has explicitly equated his investigation with a dark time in our history when Congress trampled on civil liberties.

We do not believe it is the business of the members of the House Committee on Science, Space and Technology to investigate our lawful work of sharing scientific information with other public officials. And we do not intend to cross this constitutional boundary with them.